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Supreme Court Allows 40-Foot Peace Cross Honoring War Dead on State Property Supreme Court Allows 40-Foot Peace Cross on State Property
(about 4 hours later)
WASHINGTON — The Supreme Court ruled on Thursday that a 40-foot cross honoring soldiers who died in World War I could remain on state property in suburban Maryland. The cross, justices said, did not violate the First Amendment’s ban on government establishment of religion. WASHINGTON — The Supreme Court ruled on Thursday that a 40-foot cross honoring soldiers who died in World War I could remain on state property in suburban Maryland. The cross, the court said, did not violate the First Amendment’s ban on government establishment of religion.
The decision was fractured, and the seven justices in the majority embraced differing rationales. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented. Justice Ginsburg summarized her dissent from the bench, a sign of profound disagreement. The decision was fractured, and the seven justices in the majority embraced differing rationales. In all, seven justices filed opinions.
Justice Samuel A. Alito Jr., writing for five justices, said the monument did not primarily convey a religious message.
“That the cross originated as a Christian symbol and retains that meaning in many contexts,” he wrote, “does not change the fact that the symbol took on an added secular meaning when used in World War I memorials.”
Justice Ruth Bader Ginsburg summarized her dissent from the bench, a sign of profound disagreement. She said the monument sent a message of favoritism and exclusion.
“The Latin cross,” she said from the bench, “is the foremost symbol of the Christian faith, embodying the ‘central theological claim of Christianity: that the son of God died on the cross, that he rose from the dead and that his death and resurrection offer the possibility of eternal life.’ The Latin cross is not emblematic of any other faith.”
Justice Sonia Sotomayor joined Justice Ginsburg’s dissent.
The monument, known as the Peace Cross, sits at a busy intersection in Bladensburg, Md., near Washington, and commemorates 49 fallen soldiers from Prince George’s County. It was built in 1925 using contributions from local families and the American Legion.The monument, known as the Peace Cross, sits at a busy intersection in Bladensburg, Md., near Washington, and commemorates 49 fallen soldiers from Prince George’s County. It was built in 1925 using contributions from local families and the American Legion.
At the dedication ceremony, a member of Congress drew on Christian imagery in his keynote speech. “By the token of this cross, symbolic of Calvary,” he said, “let us keep fresh the memory of our boys who died for a righteous cause.”At the dedication ceremony, a member of Congress drew on Christian imagery in his keynote speech. “By the token of this cross, symbolic of Calvary,” he said, “let us keep fresh the memory of our boys who died for a righteous cause.”
The state took over the monument and the land under it in 1961. Since then, Maryland has spent more than $117,000 to maintain and repair the memorial.The state took over the monument and the land under it in 1961. Since then, Maryland has spent more than $117,000 to maintain and repair the memorial.
Several area residents and the American Humanist Association sued to remove the cross in 2014, saying they were offended by what they said was its endorsement of Christianity.Several area residents and the American Humanist Association sued to remove the cross in 2014, saying they were offended by what they said was its endorsement of Christianity.
In 2017, a divided three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled that the cross sent an unconstitutional message of government approval of a particular religion, breaching the wall between church and state. The full Fourth Circuit declined to rehear the case by an 8-to-6 vote. Justice Alito wrote that four factors played a role in his analysis. Where older monuments are at issue, he wrote, it can be hard to identify “their original purpose of purposes.”
The American Legion and other supporters of the cross argued that the logic of the Fourth Circuit’s decision could imperil hundreds of war memorials that use crosses to honor the fallen, including the 24-foot Canadian Cross of Sacrifice and the 13-foot Argonne Cross, both in Arlington National Cemetery in Virginia. “It would be inappropriate for courts to compel their removal or termination based on supposition,” he wrote.
The cases are American Legion v. American Humanist Organization, No. 17-1717, and Maryland-National Capital Park and Planning Commission v. American Humanist Association, No. 18-18. “Second,” Justice Alito added, “as time goes by, the purposes associated with an established monument, symbol or practice often multiply.”
Third, he said, monuments can take on differing meanings over time, discussing at length the recent fire at Notre Dame in Paris.
“Although the French Republic rigorously enforces a secular public square,” Justice Alito wrote, “the cathedral remains a symbol of national importance to the religious and nonreligious alike. Notre Dame is fundamentally a place of worship and retains great religious importance, but its meaning has broadened. For many, it is inextricably linked with the very idea of Paris and France.”
Finally, he said, the act of removing an old monument poses its own problems. “A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion,” Justice Alito wrote.
The Peace Cross, he wrote, was and is a symbol of unity, noting that it included the names of both black and white soldiers at a time when the military was segregated.
“We can never know for certain what was in the minds of those responsible for the memorial,” Justice Alito wrote, “but in light of what we know about this ceremony, we can perhaps make out a picture of a community that, at least for the moment, was united by grief and patriotism and rose above the divisions of the day.”
In a concurring opinion, Justice Stephen G. Breyer said Justice Alito had eloquently set out why the Peace Cross could stay. But he added, quoting an earlier opinion, that other kinds of memorials could pose problems.
“The case would be different, in my view,” he wrote, “if there were evidence that the organizers had ‘deliberately disrespected’ members of minority faiths or if the Cross had been erected only recently, rather than in the aftermath of World War I.”
“A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach,” Justice Breyer wrote.
In her dissent in Thursday’s two consolidated cases — American Legion v. American Humanist Organization, No. 17-1717, and Maryland-National Capital Park and Planning Commission v. American Humanist Association, No. 18-18 — Justice Ginsburg said the majority had undermined the separation of church and state
“Decades ago, this court recognized that the Establishment Clause of the First Amendment to the Constitution demands governmental neutrality among religious faiths, and between religion and nonreligion,” she wrote, quoting from Justice Alito’s opinion. “Today the court erodes that neutrality commitment, diminishing precedent designed to preserve individual liberty and civic harmony in favor of a ‘presumption of constitutionality for longstanding monuments, symbols and practices.’”
In a concurring opinion that agreed with the majority’s bottom line but not its reasoning, Justice Neil M. Gorsuch said that “offended observers” such as those who sued to remove the Peace Cross had not suffered the sort of injury that gave them standing to sue. Justice Clarence Thomas joined Justice Gorsuch’s concurrence.
In her dissent, Justice Ginsburg called Justice Gorsuch’s analysis “startling,” saying that it would have stopped the court from considering several of the disputes that gave rise to major rulings on the separation of church and state.
The justices in the majority differed mostly over how sweeping the ruling should be. Justice Elena Kagan was the most cautious, declining to join parts of Justice Alito’s opinion that cast doubt Lemon v. Kurtzman, a 1971 decision that has been the subject of much judicial and academic criticism.
The ruling set out what came to be known as the Lemon test, which requires courts to consider whether the challenged government practice has a secular purpose, whether its primary effect is to advance or inhibit religion, and whether it fosters excessive government entanglement with religion.
Justice Kagan said the test still has a role to play. “I think that test’s focus on purposes and effects is crucial in evaluating government action in this sphere — as this very suit shows,” she wrote.
In his own concurrence, Justice Brett M. Kavanaugh said Thursday’s decision and earlier rulings collectively demonstrated that “the Lemon test is not good law.”
Justice Gorsuch, too, wrote that “Lemon was a misadventure” and was “now shelved.”
In his concurring opinion, Justice Kavanaugh wrote that he was alert to the distress that religious symbols can cause.
“Moreover,” he wrote, “I fully understand the deeply religious nature of the cross. It would demean both believers and nonbelievers to say that the cross is not religious, or not all that religious. A case like this is difficult because it represents a clash of genuine and important interests.”
“The conclusion that the cross does not violate the Establishment Clause does not necessarily mean that those who object to it have no other recourse,” Justice Kavanaugh wrote. “The court’s ruling allows the state to maintain the cross on public land. The court’s ruling does not require the state to maintain the cross on public land.”